Does marital coercion belong in the 21st century?

‘The law is an ass’ according to Dickens’s officiously cruel beadle Mr Bumble in Oliver Twist. We all remember his immortal line but often forget why Mr Bumble so scorned the British constitution. Mr Brownlow, Oliver’s benefactor, had just reminded the beadle that, under 19th century English law, his termagant wife would be presumed to have been coerced by her husband into stealing the locket identifying the orphan.

And it is the statutory remnant of that now-abolished common law presumption that Vicky Pryce, estranged wife of disgraced former cabinet minister Chris Huhne, infamously relied upon before her Southwark jury this month. Is the defence of marital coercion an outmoded remnant of Victoriana still embedded in the legal system? Or does it contain progressive possibilities?

Ms Pryce’s hung jury suggests that the obscure defence of marital coercion still has legs even in the 21st century. The 1,400-year-old defence began with the seventh century laws of King Ine: “If a husband steals a beast and carried it into his house, and it is seized therein, he shall forfeit his share [of the household’s property] – his wife only being exempt, since she must obey her lord.” The common law rebuttable presumption of coercion lasted until the 1922 cause célèbre Rex v Peel led to its abolition.

The acquittal of the aristocratic Mrs Peel, who with her husband Captain Peel had forged telegraphic bets for horse races that had already been run, shocked society. Why should she be presumed to have been coerced by her husband into committing a crime when, as the Old Bailey’s Darling J reasoned, “women [were then] serving on juries and becoming members of Parliament?” But acquitted she was.

The presumption was swiftly abolished after Peel and in its place a statutory defence under section 47 of the Criminal Justice Act 1925 was created. If a wife on the balance of probabilities can show that she has committed an offence in the presence of her husband and was coerced by her spouse, she is freed from criminal responsibility for all crimes barring murder and treason.

And coercion is a far more subtle concept than duress: no threats of physical violence are required, merely sufficient pressure to cause a wife’s will to be overborne by the wishes of her husband so that she was forced unwillingly to participate need be shown (see Shortland [1996] 1 Cr App R 116).

Less than the fear of extreme violence that must accompany duress but more than loyalty to, or love of, one’s spouse, marital coercion represents the law’s ancient recognition that “man and wife are one flesh”, with the female half of that unit playing an obedient and weaker role to that of the male.

Hostility

But should a defence rooted in the 7th century remain within the English law? “Modern wives [are] not like Saxon wives,” after all: see R v Richman & Richman [1982] Crim LR 507. As the Vicky Pryce trial shows, competing versions of womanhood are raised when marital coercion is invoked.

Is a wife a passive and unequal subordinate to her husband? Or is today’s wife, with all the spousal rights and protections that go along with that status, capable of being suborned by her man? Anne Darwin, who helped her canoeist husband fake his death as part of a life insurance fraud in 2002, found out in 2008 when convicted after unsuccessfully relying on marital coercion that there were limits on juries’ acceptance of a wife’s tractability.

Perhaps understandably, the Law Commission has been hostile to the defence since 1977 when it first proposed its abolition on the grounds of its inegalitarianism. But is there a progressive potential latent within the defence?

Poignant instances of the defence’s successful invocation demonstrate that marital coercion might correct a still-present imbalance between the sexes, as Janet Loveless has suggested in ‘Domestic violence, coercion and duress’, Crim. L.R. 2006, 865-866. In Anonymous, reported in [1954] Crim LR 448, a 16-year-old wife who had begged her husband not to commit a burglary but yielded to his threats of abandonment and participated in the forced entry of a property, was acquitted.

And the last recorded time the defence was successfully run at first instance, R v White (Heather), The Times, 16 February 1974, shows that some husbands need not directly threaten death or maiming to get their way. Mrs White – raped at 13, a runaway at 16 and married to her violent husband at 18 – was acquitted of robbery after guarding a gagged and bound 16-year-old hotel receptionist at the behest of her domineering spouse.

Had Anonymous or Mrs White been unmarried women, however, neither would have been able to rely on marital coercion; and duress could not have been claimed as no threats of violence were levelled at them during the course of the offences.

Unequal power

So why should unmarried women be deprived of such a defence? The regressive privileging of wives enshrined in the defence is perhaps underlined by R v Ditta [1982] Crim LR 43 where the Court of Appeal held that even a reasonable belief that one was married under sharia law was insufficient for one to be considered a ‘wife’: one had to be validly married under English law for marital coercion to operate.

How does this principle square with the High Court’s recent openness to the ruling of a Beth Din in a matrimonial dispute in Re: RAI (Children) [2013] EWHC 100? And why are same-sex civil partners excluded from the defence? If the Marriage (Same Sex Couples) Bill 2013 becomes law, will the definition of ‘wife’ not have to be stretched? And should Tory plans to counter same-sex marriage by creating heterosexual civil partnerships succeed, will female heterosexual civil partners be excluded from relying on the defence?

The answer is ‘yes’ on a strict reading of the 1925 Act. Does the 1925 Act then authorise an unequal practice that could be challenged under article 8 (right to privacy) combined with article 14 (prohibition against discrimination)?

Should the criminal law not recognise that there are many human relationships in which an unequal power dynamic exists? Children faced with orders from domineering parents should surely benefit from a defence of filial coercion. Excessive uxoriousness could amount to a defence.

However, it would appear that only prosecutorial discretion covers coercive relationships outside of that of holy matrimony. Victims of trafficking, for instance, are not to be prosecuted for offences they have been coerced into committing: see O [2008] EWCA Crim 2835. But prosecutorial discretion does not appear to encompass the manifold imbalanced relationships in society. Although the law does not recognise ?the defence of superior orders (see R v Howe [1987] AC 417), coercion could be expanded to include individuals who are not wives.

Should he ever retake a seat in the House, perhaps Chris Huhne will consider forwarding a private member’s bill on the subject. Until then, the Bumble question remains: is the law an ass?